HB3950 - Relating to digital replication rights in the voice and visual likeness of individuals; providing private causes of action; authorizing a fee.

  89R10617 SRA-F     By: Hunter H.B. No. 3950       A BILL TO BE ENTITLED   AN ACT   relating to digital replication rights in the voice and visual   likeness of individuals; providing private causes of action;   authorizing a fee.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  The Business & Commerce Code is amended by adding   Title 14A to read as follows:   TITLE   14A.   DIGITAL REPLICAS   SUBTITLE A.   DIGITAL REPLICATION RIGHTS   CHAPTER 651.   VOICE OR VISUAL LIKENESS   SUBCHAPTER A.   GENERAL PROVISIONS           Sec. 651.001.  DEFINITIONS.  In this chapter:                 (1)     "Digital replica" means a newly created,   computer-generated, highly realistic electronic representation   that is readily identifiable as the voice or visual likeness of an   individual that:                       (A)     is embodied in a sound recording, image,   audiovisual work, including an audiovisual work that does not have   any accompanying sounds, or transmission:                             (i)     in which the individual did not   actually perform or appear; or                             (ii)     that is a version of a sound recording,   image, or audiovisual work in which the individual did perform or   appear, but in which the fundamental character of the performance   or appearance has been materially altered; and                       (B)     does not include the electronic   reproduction, use of a sample of one sound recording or audiovisual   work into another, remixing, mastering, or digital remastering of a   sound recording or audiovisual work authorized by the copyright   holder.                 (2)     "Digital replication right" means the right   established under Subchapter B.                 (3)     "Eligible plaintiff" means a person authorized to   bring an action under Section 651.201.                 (4)  "Individual" means a natural or deceased person.                 (5)     "Minor" means a person younger than 18 years of age   who:                       (A)  has never been married; and                       (B)     has not had the disabilities of minority   removed for general purposes.                 (6)  "Online service" means:                       (A)     any publicly accessible Internet website,   online application, mobile application, or virtual reality   environment, including a social media service, social media   network, or online application store, that predominantly provides a   community forum for user-generated content, including the sharing   of videos, images, games, audio files, or other material; and                       (B)     a digital music provider, as defined by 17   U.S.C. Section 115(e).                 (7)     "Online service provider" means the owner of an   online service.                 (8)     "Production" means the creation of a digital   replica.                 (9)  "Right holder" means:                       (A)     the individual whose voice or visual likeness   is simulated or otherwise copied in or as a digital replica; and                         (B)     if applicable, any other person other than   the individual described by Paragraph (A) that acquires, through a   license, inheritance, or otherwise, the right to authorize the use   of the individual's voice or visual likeness in a digital replica.                 (10)     "Sound recording artist" means an individual who   creates or performs in sound recordings for economic gain or for the   livelihood of the individual.           Sec.   651.002.     APPLICABILITY. This chapter applies only to   an individual who:                 (1)  is a resident of this state; or                 (2)     was a resident of this state on the date the   individual died.   SUBCHAPTER B.   DIGITAL REPLICATION RIGHTS           Sec.   651.051.     DIGITAL   REPLICATION   RIGHTS; PROPERTY RIGHT   ESTABLISHED.   An individual or other right holder has the right to   authorize the use of the voice or visual likeness of the individual   in a digital replica. The right is:                 (1)  a property right;                 (2)     licensable, wholly or partly, exclusively or   nonexclusively, by the right holder, subject to the terms of a   contract, including a licensing agreement, or testamentary   instrument conveying digital replication rights to a right holder;   and                 (3)  not assignable during the life of the individual.           Sec.   651.052.     DIGITAL REPLICATION RIGHTS   ON   DEATH OF   INDIVIDUAL.   (a)   A digital replication right does not expire on the   death of an individual, regardless of whether the right is used   commercially by the individual during the individual's lifetime.           (b)     Subject to Chapter 26, Property Code, and other   applicable law, on the death of an individual:                 (1)     the individual's digital replication right is   transferable and licensable, wholly or partly, by the executors,   heirs, assigns, licensees, or devisees of the individual; and                 (2)     ownership of the right may be transferred, wholly   or partly, by operation of law, will, or intestate succession.           (c)  A digital replication right is exclusive to:                 (1)     the individual, subject to the licensing of the   right during the lifetime of the individual; and                 (2)  the right holder:                       (A)     for a period of 10 years after the death of   the individual; and                       (B)     subject to Section 651.151, if the right   holder demonstrates active and authorized public use of the voice   or visual likeness of the individual during the 2-year period   preceding the expiration of the 10-year period described in   Paragraph (A), for an additional 5-year period, subject to renewal   for additional 5-year periods, only if the right holder can   demonstrate authorized public use of the voice or visual likeness   of the individual during the 2-year period preceding the expiration   of each additional 5-year period.           (d)     A digital replication right terminates on the earlier   of:                 (1)     the date on which the 10-year period or 5-year   period, as applicable, described by Subsection (c)(2) expires   without renewal; or                 (2)     the date that is 70 years after the death of the   individual.           (e)     If a right holder died before September 1, 2025, the   right holder's digital replication rights vest in the executors,   heirs, assigns, or devisees of the right holder.           Sec.   651.053.     UNAUTHORIZED USE OF DIGITAL REPLICA. Except   as provided by Section 651.054 and subject to Section 651.104, a   person may not:                 (1)     produce a digital replica without the written   consent of the right holder; or                 (2)     publish, reproduce, display, distribute,   transmit, or otherwise make available to the public a digital   replica without the written consent of the right holder.           Sec.   651.054.     PERMITTED USES. (a)   Except as provided by   Subsection (b), a person may use a digital replica without the right   holder's consent if the digital replica is:                 (1)     produced or used in a bona fide news, public   affairs, or sports broadcast or account, provided that the digital   replica is the subject of, or is materially relevant to, the subject   of the broadcast or account;                 (2)     a representation of the individual in a   documentary, biographical, or historical manner, including some   degree of fictionalization, unless:                       (A)     the production or use of that digital replica   creates the false impression that the digital replica is an   authentic sound recording, image, transmission, or audiovisual   work in which the individual participated; or                       (B)     the digital replica is embodied in a musical   sound recording that is synchronized to accompany a motion picture   or other audiovisual work, except to the extent that the use of that   digital replica is protected by the First Amendment to the United   States Constitution;                 (3)     produced or used consistent with the public   interest in bona fide commentary, criticism, scholarship, satire,   or parody;                 (4)  used in a fleeting or negligible manner; or                 (5)     used in an advertisement or commercial   announcement for a purpose described by Subdivisions (1) through   (4) and the digital replica is relevant to the subject of the   advertisement or announcement.           (b)     Subsection (a) does not apply to a digital replica used   to depict sexual conduct, as defined by Section 21.16, Penal Code.           Sec.   651.055.     AUTHORITY TO LICENSE DIGITAL REPLICATION   RIGHT. Except as provided by Section 651.056 or 651.057, an   individual may, during the individual's lifetime, license the   individual's digital replication right. A license under this   section is valid only:                 (1)     to the extent the duration of the license does not   extend beyond the 10th anniversary of the date the license   agreement is entered into; and                 (2)  if the license agreement:                       (A)     is in writing and signed by the individual or   an authorized representative of the individual; and                  &#xA [Text truncated for display. Full text available on Congress.gov.]